Weston v The Queen P66/2000 [2000] HCATrans 517 (5 September 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P66 of 2000

B e t w e e n -

TREVOR CAMERON WESTON

Applicant

and

THE QUEEN

Respondent

Application for bail

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON TUESDAY, 5 SEPTEMBER 2000, AT 4.42 PM

Copyright in the High Court of Australia

MR G.L.W. VICKRIDGE: May it please the Court, I appear for the appellant in this matter. (instructed by Kott Gunning)

MR D. DEMPSTER: May it please the Court, I appear for the Crown. (instructed by Director of Public Prosecutions (WA))

HIS HONOUR: I apologise for the delay, but the appeal that was heard today went over 15 minutes past the usual finishing time for the day. Would you proceed with your submissions, Mr Vickridge, please.

MR VICKRIDGE: Thank you, your Honour. Has your Honour had an opportunity to read the outline of submissions?

HIS HONOUR: Yes, I have read all the papers.

MR VICKRIDGE: Thank you, your Honour. Your Honour, in respect of this matter; I will go straight to the heart of it. There were two brothers who were charged with the same offence of wilful damage and for some inexplicable reason - - -

HIS HONOUR: Well, I appreciate Jason was charged in the Petty Sessions, he was fined $300 and orders to pay $666 compensation. The maximum penalty, if dealt with summarily, was three years imprisonment or a fine of $12,000, I think, was it not?

MR VICKRIDGE: Yes, your Honour.

HIS HONOUR: And then Craig Howard, he got 18 months imprisonment, did he not?

MR VICKRIDGE: Yes, your Honour, and then Jason's brother, who is the applicant, Trevor, also received 18 months.

HIS HONOUR: Yes.

MR VICKRIDGE: But, in respect of Craig Howard, I believe there were other offences as well. I am not entirely clear on what went there.

HIS HONOUR: Yes.

MR VICKRIDGE: And, implicit in the transcript - and I do not think it is argued - is the fact that my client, Trevor Cameron Weston, the applicant, an order for parole was also made in respect of him. And your Honour will be aware that there was another offence for which a sentence of three months imprisonment was made, an order for three months imprisonment, accumulative on the imprisonment imposed for the offence of wilful damage.

The applicant appealed in the Court of Criminal Appeal in Western Australia and that matter was unanimously denied by the Court of Criminal Appeal and the applicant was returned to complete the period of imprisonment.

HIS HONOUR: Your client was given bail pending the appeal to the Court of Criminal Appeal, was he not?

MR VICKRIDGE That is correct, your Honour. He was granted bail on 8 October 1999 and the application for leave to appeal against sentence was heard on 4 April, about four months later, but the decision was not handed down until 27 July 2000.

HIS HONOUR: 27 July, yes.

MR VICKRIDGE So he was on bail for a period from 8 October 1999 to 27 July 2000.

HIS HONOUR: So your client has served, what, a total of about 18 weeks of his sentence, has he, up to today?

MR VICKRIDGE I think his appeal - no, I think it is a little more than that. I think it is about six months. Yes. I think that is right, your Honour, about 18 weeks and his earliest date for release is 25 November this year.

HIS HONOUR: Yes.

MR VICKRIDGE And my understanding is that the application for special leave to appeal will not be heard until October 2001. Your Honour, we say that the Court of Criminal Appeal - - -

HIS HONOUR: Would you just excuse me please, Mr Vickridge?

MR VICKRIDGE Yes, your Honour.

HIS HONOUR: Well, the Deputy Registrar tells me no date has been set for it and it would be most unlikely that the case would not be heard before October 2001 unless you are going to insist on it being heard in Perth.

MR VICKRIDGE: Not at all. I am sorry, that may have been a misunderstanding on my part, your Honour. I was aware that the October 2000 list in Perth was full. The Deputy Registrar did make me aware of that and it is correct, no date has been set, but I understood, obviously mistakenly, that it would not be heard before October next year. I am willing to concede that. But, in any event, your Honour, my understanding is it is highly unlikely to be heard before 25 November this year.

HIS HONOUR: Yes. The difficulty that you have, it seems to me, is that this Court will only grant bail in very exceptional circumstances and that it has been held, I think, more than once, but certainly in Robinson's Case, that the fact that the accused may have served his sentence is not a sufficient ground. Indeed, in the appeal we have just finished hearing today, the accused has served her sentence.

MR VICKRIDGE: Your Honour, if I may, in respect of Robinson per curiam, Her Honour said in Robinson that the circumstances that may properly be described as sufficiently exceptional to justify the grant of bail pending appeal must relate to the proceedings to be conducted and their relationship with a sentence being served. And, certainly, my understanding is that your brother, Justice Dawson, in Peters said that circumstances in which bail was granted conditionally, pending a determination of a special leave application and where a custodial sentence would have been all but served by the hearing of the application and, of course, in this case the custodial sentence will have been served in its entirety, more likely than not, before the special leave application is heard.

HIS HONOUR: But why do you say that? Your client was given a sentence of 18 months plus three months, was he not, for the other charge on the driving with no licence charge, to be served cumulatively?

MR VICKRIDGE: Yes.

HIS HONOUR: He served about 18 weeks of it. Even if 25 November is the earliest date, he may not well be released until some time next year.

MR VICKRIDGE: Well, there is certainly no evidence to sustain that, your Honour. Generally speaking, and my understanding is - and I appreciate it is evidence from the Bar table - that my client has been a model prisoner. Certainly, while he was on bail for the period from October to July of this year he committed no offences, he did not breach his conditions of bail in any way, shape or form, and there is no reason to suspect that he will not be released on 25 November.

Perhaps, your Honour, if I may take you through where I would sense that the problem lies, and really the heart of the ground of appeal. I notice that my learned friend, Mr Dempster, in his submission, says the Court of Criminal Appeal unanimously refused leave to appeal - and obviously I do not disagree with that. But in my respectful submission, where the honourable Court of Criminal Appeal erred was that they were looking solely at reducing, or the possibility of reducing, the applicant's sentence to the same as that of his brother. That was not the argument in the appeal. The appeal, in fact, follows along the line of really it is Goddard's Case, which is - - -

HIS HONOUR: Yes, but we are not here to argue the special leave application, and certainly I am not going to permit you to have more time to argue a bail application than you would get on the special leave application. The problem, it seems to me, that you have is that bail would only be granted in exceptional circumstances. There does not seem to be any point of principle involved in the case. The question is simply whether or not at best the Court of Criminal Appeal erred in holding that your client would have no justifiable sense of grievance in an objective sense by reason of the fact that his brother got the sentence which he did in the Court of Petty Sessions, and your client got a sentence of 18 months in the District Court. That is just a question of judgment. It hardly, on its face, requires the grant of special leave.

MR VICKERIDGE: With the greatest respect, your Honour, I would have thought that the disparity between the two - and it is really the disparity between the two - is so great as to be exceptional, so great as to cause an objective observer to see it as a justifiable sense of grievance. We are not saying that he should have been fined $300, but there are - - -

HIS HONOUR: Yes, but we do not sit as a Court of Criminal Appeal and until comparatively recently the Court would never ever intervene in sentence matters. Now, in recent years it has because sentencing has become quite complex and there are often important principles to be laid down but this, at the moment, seems to me to be a simple case of the application of a well-known principle, a well-established principle. You say the Court of Appeal got it wrong and there is nothing more to the case than that, nothing that would warrant the grant of special leave to appeal.

MR VICKERIDGE: Well, it is - I appreciate what your Honour is saying but the preservation of the situation is something that this honourable Court has addressed before today and that preservation cannot be maintained if my client is not granted bail, pending the hearing.

HIS HONOUR: Yes, but - - -

MR VICKERIDGE: It may well be that this Court will not grant special leave, it may well be, but that is another matter and that can be argued fully at the appropriate time, as, of course your Honour has already stated, but it is the preservation of Mr Weston's situation which is a fundamental right that he has and that is what we are appealing - - -

HIS HONOUR: He has not got any right at all. I mean, that is another error that one frequently hears. Until a special leave is granted there is no right at all. You do not have a right to get special leave. You can make an application, and there is no proceeding in the Court until special leave is granted. You have got a statutory right, if you like, to apply for special leave to appeal and that is it.

MR VICKRIDGE Again, your Honour, I apologise. I, perhaps, put that badly. Certainly I agree there is no right but here you have a situation where, if the appeal is successful, it will be of no value in the sense that if, for instance - - -

HIS HONOUR: Well, it will certainly be of some value because even if he is released early he will still have the balance of the 21-month sentence hanging over his head and anything that he did wrong could cause him to be sent back to gaol, even if he is released on parole or licence or whatever is done in Western Australia so it is not as though it has no value at all to him. But even if his sentence would expire, the fact is that it is a serious interference with the administration of justice in the States for this Court to be intervening and letting people out on bail unless there is something very exceptional about the case and it does not strike me, at the moment, that this is a case where one can be confident that special leave will be granted and, that being so, the Court must naturally be even more cautious about granting bail.

MR VICKRIDGE With great respect, your Honour, as you can see from paragraph 26 in the submissions, I would have thought that the applicant had a strongly arguable ground of appeal with strong prospects of success and I think at the end of the day, as your Honour has already touched on it, it is a matter of viewing a situation and then making a decision. It can be seen one of two ways. I do not believe I can take the matter any further at this time, your Honour.

HIS HONOUR: Yes, well thank you very much, Mr Vickridge.

MR VICKRIDGE Thank you, your Honour.

HIS HONOUR: Yes. This is an application by Trevor Cameron Weston for bail pending the hearing of his application for special leave to appeal against two sentences, one being 18-months imprisonment on account of wilful and unlawful damage and the other being a sentence of three-months imprisonment on a charge of driving with no licence, the latter sentence to be served cumulatively on the sentence of 18-months imprisonment.

The applicant was released on bail for a period pending the hearing of his appeal to the Court of Criminal Appeal of Western Australia. He has served approximately 18 weeks of his total sentence of 21 months. He is eligible, however, according to Mr Vickridge, who appears for him, to be released after 25 November of this year. It is almost certain that his special leave application will not be heard before that date. In those circumstances, Mr Vickridge contends that to refuse the applicant bail at this stage would be to frustrate his right to seek special leave to appeal from this Court.

It is well established that this Court will only grant bail pending the hearing of a special leave application in most exceptional circumstances, see, for example, Peters v The Queen (1996) 71 ALJR 309. It is also established that the fact that the applicant may have served the whole of the non-parole part of his sentence by the time the special leave application is heard is not, of itself, such an exceptional circumstance as to warrant the grant of bail. See Robinson v The Queen (1991) 65 ALJR 519.

A matter that cannot be left out of consideration in determining whether bail should be granted is the prospect of special leave to appeal being granted. In some cases that would be a matter of marginal utility, but in other cases where it is not readily apparent that special leave will be granted, it is a factor that can be taken into account.

Here the applicant contends that his sentence should be set aside by reason of the manifest disparity between a sentence imposed on his brother in the Court of Petty Sessions, and the sentence imposed on himself, and perhaps also on another co-offender who received a similar sentence to the applicant. The Court of Criminal Appeal took into account the sentence that had been imposed on the brother but was nevertheless of the view that an objective observer would not have a justifiable sense of grievance in this particular case because of the disparity in the sentences.

The case seems to me, at the moment, to involve no question of general importance or of principle. It seems to be no more than a case of the application of a well-established principle to the particular facts of the case. In those circumstances, one cannot be confident that special leave to appeal will be granted. That being so, it seems to me, in all the circumstances of the case, that the case is not one for the grant of bail. Accordingly, I dismiss the application for bail.

The Court will now adjourn to reconstitute.

AT 5.03 PM THE MATTER WAS CONCLUDED